Texas Court: No Gay Divorce Here

(Sept. 1) -- There's no gay marriage in Texas, and now, for one couple, no gay divorce either.

The 5th Texas Court of Appeals in Dallas ruled Tuesday that same-sex couples who legally marry in other states cannot divorce in Texas, which bans gay marriage, according to media reports.

The ruling overturned an October decision by District Judge Tena Callahan, who said two men legally married in Massachusetts could divorce in Texas, The Dallas Morning News reported. The court sent the case back to Callahan for dismissal.

The appeals court also held that the gay marriage ban is constitutional, though Callahan, a Democrat, ruled that marriage in the state could not be limited to just heterosexual couples, The Associated Press reported.

"A person does not and cannot seek a divorce without simultaneously asserting the existence and validity of a lawful marriage," wrote Justice Kerry P. Fitzgerald on behalf of the three Republican appeals court justices, according to the AP. "Texas law, as embodied in our constitution and statutes, requires that a valid marriage must be a union of one man and one woman, and only when a union comprises one man and one woman can there be a divorce under Texas law."

The ruling involves a Dallas couple, H.B. and J.B., who were married in Massachusetts in 2006, separated after two years and then sought a divorce, the Fort Worth Star-Telegram reported. They do not have children.

J.B., who sued for divorce, could obtain residency in Massachusetts and get a divorce there or appeal to the Texas Supreme Court, the Morning News said.

"We respectfully disagree with the justices' opinion," J.B.'s lawyer, Peter Schulte, told the Star-Telegram. "However, we respect the process and are currently evaluating our options moving forward."

Texas Attorney General Greg Abbott, who appealed Callahan's ruling, applauded Tuesday's ruling.

"Because the Constitution and laws of the state of Texas define marriage as the union of one man and one woman, the court correctly ruled that Texas courts do not have the authority to grant a same-sex divorce," he said in a statement cited by the Morning News.

Arguing before the three-judge appeals panel in April, Abbott's office said the couple couldn't divorce because Texas didn't recognize their marriage, but Jody Scheske, a lawyer who also represents J.B., said he was eligible to divorce because he had a legal marriage, the AP reported.

Despite a state law prohibiting gay marriage already on the books, Texas voters approved a constitutional amendment banning same-sex marriage by a wide margin in 2005. The case in Tuesday's ruling was the first to be appealed to a higher court, the Star-Telegram said.

The head of the conservative Liberty Institute of Plano, Kelly Shackelford, told the AP the ruling "strikes down an activist judge's attempt to take the law into her own hands."

On the other side of the gay marriage issue, Jennifer Pizer, a lawyer for Lambada Legal, told the AP, "It's deeply disappointing to see courts deny same-sex couples equal treatment under the law."